Citation Nr: 0414715
Decision Date: 06/08/04 Archive Date: 06/23/04
DOCKET NO. 03-12 056 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to a compensable rating for the post-operative
residuals of perianal warts.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. Pomeranz, Associate Counsel
INTRODUCTION
The appellant had active military service from September 1980
to September 1983.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a July 2002 rating action by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in No. Little Rock, Arkansas.
This appeal is remanded to the RO via the Appeals Management
Center in Washington, D.C.
REMAND
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002). Under regulations
implementing the VCAA, VA's duty to notify and duty to assist
have been significantly expanded. 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326 (2003).
First, VA has a duty to provide notice of any information
necessary to complete the claim, if it is incomplete.
38 C.F.R. § 3.159(b)(2). Second, VA has a duty to notify the
claimant of any information and evidence needed to
substantiate a claim, and of what part of that evidence is to
be provided by the claimant and what part VA will attempt to
obtain for the claimant. 38 C.F.R. § 3.159(b)(1); see
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third,
VA has a duty to assist claimants in obtaining evidence
needed to substantiate the claim. 38 C.F.R. § 3.159(c).
In this case, a review of the claims file does not reveal
that the appellant has been advised of the changes brought
about by the VCAA regulations. Specifically, the appellant
has not been sent any VCAA-type notice that relates directly
to the rating issue on appeal, which is entitlement to a
compensable rating for the post-operative residuals of
perianal warts. Additionally, he has not been informed as to
what evidence he is to submit and what evidence VA will
obtain. Thus, the Board will remand the appellant's claim to
ensure full and complete compliance with the enhanced duty-
to-notify and duty-to-assist provisions of the VCAA.
In this case, the Board notes that the appellant's service-
connected post-operative residuals of perianal warts have
been assigned a noncompensable disability rating under
38 C.F.R. § 4.118, Diagnostic Code 7805 (2003), as analogous
to a scar, effective from November 13, 1995. The Board notes
that Diagnostic Code 7805 pertains to skin disorders. See
38 C.F.R. § 4.118. In this regard, the Board observes that
during the course of the appellant's appeal, the schedular
criteria by which skin disabilities are rated were revised.
The new criteria have been in effect since August 30, 2002.
67 Fed. Reg. 49,590-49,599 (July 31, 2002). In this case,
the new regulatory criteria used for the evaluation of skin
conditions have not yet been applied to the appellant's
claim. Thus, in light of the above, the Board finds that the
appellant should be specifically advised by the RO of the new
criteria for rating skin disabilities.
Additionally, at the appellant's personal hearing before the
Board in November 2003, he stated that manifestations of this
disorder had increased in severity since the last VA
examination. The United States Court of Appeals for Veterans
Claims (Court) has held that the "fulfillment of the
statutory duty to assist . . . includes the conduct of a
thorough and contemporaneous medical examination . . . so
that the evaluation of the claimed disability will be a fully
informed one." Green v. Derwinski, 1 Vet. App. 121, 124
(1991). Moreover, the appellant should be afforded a new VA
examination which evaluates his symptomatology in terms
pertinent to the rating criteria that were in effect when he
filed his claim, as well as the rating criteria as amended
during the pendency of his appeal. See 38 C.F.R. § 4.118
(2002); 67 Fed. Reg. 49,596-99 (July 31, 2002). As such, the
Board concludes that an additional VA examination would
provide a record upon which a fair, equitable, and
procedurally correct decision on the claim on appeal can be
made. 38 C.F.R. §§ 3.326, 3.327 (2003).
The Board further notes that by a December 2002 rating
action, the RO denied the appellant's claim for entitlement
to service connection for pseudofolliculitis and a rash/skin
condition. The appellant thereafter filed a notice of
disagreement in March 2003. The appellant's representative
specifically requested that the RO consider the memorandum as
a notice of disagreement with the rating decision regarding
the appellant's claim of service connection for
pseudofolliculitis and a rash/skin condition. Thus, as this
statement is accepted as a timely notice of disagreement on
this issue, the Board is required to remand to the RO for
issuance of a statement of the case. Manlincon v. West, 12
Vet. App. 238 (1999).
Accordingly, this case is remanded to the RO for the
following actions:
1. The RO should issue a statement of
the case to the appellant and his
representative that addresses the issue
of entitlement to service connection for
pseudo-folliculitis and a rash/skin
condition. The appellant and his
representative are reminded that to vest
the Board with jurisdiction over this
issue, a timely substantive appeal to the
December 2002 rating decision must be
filed. 38 C.F.R. § 20.202 (2003). If
the appellant perfects the appeal as to
the aforementioned issue, the case should
be returned to the Board for appellate
review. 38 C.F.R. §§ 20.202, 20.302
(2003).
2. The RO must review the claims folder
and ensure that all VCAA notice and duty
to assist obligations have been
satisfied. The appellant should be
specifically told of the information or
evidence he needs to submit to
substantiate his claim and what evidence
VA will obtain. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002). In
this regard, the RO should specifically
request that the appellant identify the
names, addresses, and approximate dates
of treatment for all VA and non-VA health
care providers who have treated him for
his service-connected post-operative
residuals of perianal warts, in recent
years. With any necessary authorization
from the appellant, the RO should attempt
to obtain copies of pertinent treatment
records identified by the appellant in
response to this request, which have not
been previously secured. All attempts to
secure this evidence must be documented
in the claims file by the RO. If, after
making reasonable efforts to obtain named
records the RO is unable to secure same,
the RO must notify the appellant and (a)
identify the specific records the RO is
unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; and (c) describe any further
action to be taken by the RO with respect
to the claim. The appellant and his
representative must then be given an
opportunity to respond.
3. After any additional evidence has
been obtained and added to the record,
the RO should make arrangements with the
appropriate VA medical facility for the
appellant to be afforded a comprehensive
VA examination to determine the current
severity of the appellant's service-
connected post-operative residuals of
perianal warts. The claims folder and a
copy of this remand must be made
available to the examiner for review in
conjunction with the examination. The
examiner is specifically requested to
review the appellant's July 2002 VA anus
and rectum examination report. All
necessary special studies or tests are to
be accomplished. With respect to the
appellant's service-connected post-
operative residuals of perianal warts,
the examiner should state whether the
appellant has any scars, and, if so, the
examiner should specifically note whether
the appellant's scar(s) is superficial,
unstable, poorly nourished, with repeated
ulceration, or painful on objective
demonstration. (A superficial scar is
one not associated with underlying soft
tissue damage, and an unstable scar is
one where, for any reason, there is
frequent loss of covering of skin over
the scar.) The area of scarring should
be measured. The examiner should also
discuss the presence (including degree)
or absence of ulceration, exfoliation,
crusting, systemic or nervous
manifestations, exudation, itching, or
lesions. In addition, the examiner
should comment as to whether, in the past
12 months, the appellant had used
systemic therapy, such as corticosteroids
or other immunosuppressive drugs, and if
so, the frequency he had used such
therapy should be noted. In the
alternative, the examiner should note
whether the appellant had used a topical
therapy in the past 12 months. All
findings should be reported in detail.
The rationale for all opinions should be
explained in detail. The report prepared
should be typed.
4. The appellant is hereby notified that
it is his responsibility to report for
the examination and to cooperate in the
development of the claim. The
consequences for failure to report for a
VA examination without good cause may
include denial of the claim.
38 C.F.R. §§ 3.158, 3.655 (2003). In the
event that the appellant does not report
for the aforementioned examination,
documentation should be obtained which
shows that notice scheduling the
examination was sent to the last known
address. It should also be indicated
whether any notice that was sent was
returned as undeliverable.
5. Thereafter, the RO should review the
claims file and take all other proper
measures to ensure full and complete
compliance with the duty-to-notify and
duty-to-assist provisions of the VCAA.
The RO should also ensure that the VA
examination report addresses all actions
requested. If it does not, it must be
returned to the examiner for corrective
action.
6. The RO should then review and re-
adjudicate the issue on appeal.
Specifically, in regard to the
appellant's claim for a compensable
rating for the post-operative residuals
of perianal warts, the RO should consider
the newly enacted provisions of 38 C.F.R.
§ 4.118, pertaining to the evaluation of
skin conditions. See 67 Fed. Reg.
49,590-599 (July 31, 2002). If such
action does not grant the benefit
claimed, the RO should provide the
appellant and his representative a
supplemental statement of the case and an
appropriate period of time should be
allowed for response. Thereafter, the
case should be returned to this Board for
appellate review.
No action is required by the appellant until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).